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Poland

Author: Magdalena Tulibacka

II. Overview

Polish civil procedure contains both (1) a class action procedure of judicial nature (albeit not available in all areas of law), injunctive and compensatory, and (2) a representative injunctive procedure of an administrative nature in consumer cases. The latter can concern collective consumer interests or unfair contractual clauses.

Class actions were established by the Act of 17 December 2009 (Class Actions Act), in force since 19 July 2010. The Class Actions Act is in the process of being amended and some important aspects of the procedure will very soon be changed. The Act of 7 April 2017 (referred to as '2017 amendment') was published on 12 May 2017 (item 933).

The Class Actions Act, as it stands covers consumer protection claims, product liability claims, and tort claims with the exclusion of claims for the protection of personal interests, i.e. personal injury claims could not be brought under the Act. The 2017 amendment widens the scope to include certain claims between business as well as declaratory relief in personal injury claims.

The class action procedure can be used for bringing compensation claims or, in cases where monetary damages are at stake, liability-only (declaratory relief) claims. Class actions can also involve requests to refrain from certain activity or activities (therefore having the same aim and potential result as injunctive proceedings).

The class representative in Poland is the 'named party' who brings the case in his own name but on behalf of all class members. The Act limits the persons who can represent the class to two categories: class members and the regional consumer ombudsmen. The Class Actions Act does not allow class representatives to obtain legal aid (which in Poland consists of legal assistance nominated by court and a waiver of court fees). Most cases are self-funded privately by each class member. Third party funding is not prohibited and is at present unregulated.

In the first stage of the proceedings, the court notifies the defendant of the lawsuit, and considers whether all the requirements have been met (at least ten people with claims of the same kind and with the same or similar factual basis) and thus whether the class action can be certified. After the class certification decision is final, the court issues a statement on the commencement of the class action, including information that potential class members can join the class within a period specified by the court. The Polish Class Action procedure is an opt-in procedure.

The Class Action Act requires that class members who have monetary claims make them equal with the other class members. This standardisation requirement means that those who decided to opt in may sometimes need to modify their claims to make them equal with the others. The standardisation requirement constitutes an exception from the principle of full compensation, and is criticized as unconstitutional. It causes many substantive and procedural problems for class members. Lawyers representing class members report that they advise them to limit the claim to declaratory relief only, and then follow the injunction with individual compensatory claims.

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